Billingsley v. Commissioner Social Security Administration
Filing
26
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 24 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The defendants motion for summary judgment 19 is GRANTED and the plaintiffs motion for judgment on the pleadings 13 is DENIED. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Plaintiff advised of appeal rights. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 7/3/14. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT BILLINGSLEY,
Plaintiff,
v.
Civil Action No. 5:13CV126
(STAMP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Procedural History
The plaintiff, Robert Billingsley, filed an application under
Title II for disability insurance benefits (“DIB”) on September 27,
2011, and on November 3, 2011, he filed an application under Title
XVI of the Social Security Act for supplemental security income
(“SSI”).
In his applications, the plaintiff alleges disability
beginning September 19, 2008, due to blood clots, central core
myopathy, stage 3 rectal cancer, and swollen feet.
The Social Security Administration denied the plaintiff’s
application
initially
and
on
reconsideration.
The
plaintiff
requested a hearing, and a hearing was held on February 21, 2013,
before an administrative law judge (“ALJ”).
At this hearing, the
plaintiff testified on his own behalf, as did a vocational expert
(“VE”).
On March 5, 2013, the ALJ issued a decision finding that
the plaintiff was not disabled and was capable of performing past
relevant work as a telemarketer and department editor.
The ALJ
stated that such work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (“RFC”).
The plaintiff appealed the ALJ’s decision.
On
July 17, 2013, the Appeals Council denied plaintiff’s request for
review.
The plaintiff now requests judicial review of the ALJ’s
decision finding him not disabled.
The case was referred to United States Magistrate Judge James
E.
Seibert
for
submission
of
proposed
disposition
findings
pursuant
of
to
28
fact
and
recommendation
for
U.S.C.
§ 636(b)(1)(B).
The plaintiff filed a motion for judgment on the
pleadings and the defendant filed a motion for summary judgment.
On
June
11,
2014,
the
magistrate
judge
issued
a
report
and
recommendation recommending that the defendant’s motion for summary
judgment be granted and the plaintiff’s motion judgment on the
pleadings
be
denied.
Upon
submitting
his
report
and
recommendation, Magistrate Judge Seibert informed the parties that
if they objected to any portion of his proposed findings of fact
and
recommendation
for
disposition,
they
must
file
written
objections within fourteen days after being served with a copy of
the report.
Neither party filed objections.
II.
Applicable Law
As there were no objections filed to the magistrate judge’s
recommendation, his findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
2
28 U.S.C.
§ 636(b)(1)(A). Additionally, because no party filed objections to
the report and recommendation, thus, the plaintiff waived his right
to appeal from a judgment of this Court based thereon.
Thomas v.
Arn, 474 U.S. 140, 148-53 (1985).
III.
Discussion
To make a disability determination, an Administrative Law
Judge (“ALJ”) must undertake a five-step sequential analysis, which
is set forth at 20 C.F.R. §§ 404.1520, 416.920.
An ALJ must
determine whether the claimant (1) is currently employed; (2) has
a severe impairment; (3) has an impairment that meets or equals the
requirements of a listed impairment; (4) can perform his past work;
and, if he cannot perform his past work, (5) can perform other work
in the national economy.
An ALJ’s findings must be upheld if
supported by substantial evidence.
See Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 528 (4th Cir. 1998).
Substantial evidence is
that which a “‘reasonable mind might accept as adequate to support
a conclusion.’”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Further, the “‘possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence.’” See Sec’y
of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)
(quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
It is the duty of the ALJ, not of the courts, to make findings of
3
fact and to resolve conflicts in the evidence.
The Court’s scope
of review is limited to determining whether the findings of the
Secretary are supported by substantial evidence and whether the
correct law was applied, not to substitute the Court’s judgment for
that of the Secretary.
A.
Hays, 907 F.2d at 1456.
Past Relevant Work as an Editor
In his motion for judgment on the pleadings, the plaintiff
first alleges that the ALJ committed reversible error by improperly
evaluating the plaintiff’s past experience as an editor as prior
relevant work and by failing to consider the VE’s testimony
regarding available skills relating to the position. The plaintiff
asserts that he only worked for one month as an editor before the
15-year window for relevancy of work experience ended.
He states
that the VE testified that while he may still have basic skills
associated with this job, those skills may need updated.
The
plaintiff asserts that based on the evolution of the field of
editing, his current age, and the fact that he has not worked in
the field for 14 years and 11 months, the ALJ improperly considered
the job as past relevant work. The defendant, however, argues that
the ALJ did properly evaluate the plaintiff’s past experience as an
editor as prior work experience and heard the VE’s testimony
regarding available skills relating to the position even though the
ALJ was not required to consider such testimony at that stage.
4
During the fourth step of an ALJ’s analysis of a claimant’s
disability claim, the ALJ considers the RFC and past relevant work.
Specifically, the ALJ must “compare [the] residual functional
capacity assessment . . . with the physical and mental demands of
[the claimant’s] past relevant work.”
20 C.F.R. § 416.920(f).
Past relevant work is defined as work the claimant has “done within
the past 15 years, that was substantial gainful activity, and that
lasted long enough for the claimant to learn how to do it.”
C.F.R. § 416.960(b).
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If the ALJ determines that the claimant can
still do that kind of work, the claimant will not be found
disabled.
On the other hand, if the ALJ finds that the claimant
cannot do his past relevant work, or if the claimant has no past
relevant work, then the ALJ proceeds to step five and determines
whether the claimant can perform any other work considering the
claimant’s
RFC
and
other
vocational
education, and work experience.
factors,
such
as
20 C.F.R. § 416.920(g).
age,
“A
vocational expert enters the sequential analysis for determining
disability after a claimant is found unable to do her past relevant
work.”
Smith v. Bowen, 837 F.2d 635, 637 (4th Cir. 1987).
The magistrate judge found that the ALJ properly considered
the plaintiff’s editing job for several reasons.
First, the
magistrate judge noted that the job did fall within the 15-year
period.
Second, the magistrate judge stated that he had held the
job for a 26-year period, which the magistrate judge found was
5
sufficient for him to learn how to do the job and was substantial
gainful employment.
Further, the magistrate judge found that the
plaintiff had a four year college education, and there are no
allegations that he can no longer mentally perform his work. As to
whether
the
ALJ
properly
considered
the
vocational
expert’s
testimony on this subject, the magistrate judge found that the ALJ
was not required to consider such testimony.
After reviewing the ALJ’s opinion, this Court agrees with and
finds no clear error in the magistrate judge’s findings concerning
the ALJ’s consideration of the plaintiff’s editing job as past
relevant work, nor is there any error in his finding that the ALJ
was not required to consider testimony from the vocational expert
at that step in his analysis.
Further, this Court agrees that
substantial evidence supports the ALJ’s findings regarding the
plaintiff’s ability to perform past relevant work as an editor.
B.
Past Relevant Work as a Telemarketer
The plaintiff next alleges in his motion for summary judgment
that the ALJ erred in considering the plaintiff’s capacity to
return to his past relevant work as a telemarketer and should have
proceeded to Step Five, which would have compelled a finding of
disability.
The plaintiff asserts that the ALJ did not consider
all of the medical and non-medical evidence of record in making his
RFC determination. Specifically, he asserts that the ALJ failed to
determine that his enlarged prostate was a severe impairment and he
6
failed to consider the effects of his central core myopathy and
frequency of bowel movements on his capacity to perform sedentary
occupations, like that of a telemarketer. The defendant responded,
arguing that the ALJ did properly consider all evidence concerning
the plaintiff’s ability to return to his past relevant work as a
telemarketer.
An RFC is defined as “the most you can still do despite your
limitations.”
20 C.F.R. § 404.1545(a)(1).
Pursuant to 20 C.F.R.
§ 404.1545, the determination of an RFC must be based upon all
relevant evidence, including descriptions of limitations that go
beyond the symptoms, and observations by treating physicians,
psychologists, family, neighbors, friends, or other persons.
All
of this evidence is considered alongside medical records to allow
the ALJ to form a complete determination of the claimant’s RFC.
After reviewing the ALJ’s opinion, this Court agrees with the
magistrate
judge’s
finding
that
the
ALJ’s
RFC
determination
accounted for all of plaintiff’s functional limitations that were
established in the record.
substantial
evidence
Further, this Court agrees that
supports
the
ALJ’s
evaluation
of
the
plaintiff’s impairments.
IV.
Conclusion
Because the parties have not objected to the report and
recommendation,
and
because
this
Court
finds
that
the
recommendation is not clearly erroneous, this Court hereby AFFIRMS
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and ADOPTS the magistrate judge’s report and recommendation in its
entirety. For the reasons stated above, the defendant’s motion for
summary judgment is GRANTED and the plaintiff’s motion for judgment
on the pleadings is DENIED.
It is further ORDERED that this civil
action be DISMISSED and STRICKEN from the active docket of this
Court.
Moreover, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action will result in a
waiver of appellate rights.
Thus, the plaintiff’s failure to
object
judge’s
to
the
magistrate
proposed
findings
and
recommendation bars the plaintiff from appealing the judgment of
this Court. See 18 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d
841, 845 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
July 3, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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